Christensen v. Oscar Daniels Co. , 142 Ill. App. 129 ( 1908 )

Me. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant that there is a fatal variance between material averments of the declaration and the plaintiff’s proof. The declaration avers that the plaintiff “tripped upon the said cable and threw his hand back against the said drum”; that plaintiff stepped away from the moving drum upon which he had been placing the cable, with the purpose of getting out from between the said drums, “and in so doing tripped upon the cable from the other drum,” which had in the meantime been started; and that he “threw his hand back against the said drum and the said cable upon the said drum then and there caught his finger.” This averment is not supported by the plaintiff’s evidence. The testimony of the plaintiff is, not that he tripped upon the cable, but that he “was tripped by the lower drum, that is the one behind me,” and that it was the drum he “had been working on all the time and the one I put my finger on,” which inflicted the injury complained of and not the other and lower drum alleged in the declaration to have been negligently started without notice to plaintiff. The latter testifies not only that he “tripped on the lower drum behind me,” but that “the.cable on the lower drum had been wound up.” It is clear therefore from his own statement that he did not trip on the cable of the lower drum or any cable as his declaration avers. One of plaintiff’s witnesses testifies that plaintiff “went to step backwards over the bottom drum. In so doing he lost his balance and went to grab out or get hold of the topping lift cable and hung on to it, and his hand went in and caught on .the cable. At the time the plaintiff lost his balance one foot was between the drums and the other was over the drum,” that is the lower drum. The variance is clear and relates to material averments of the declaration, upon which plaintiff bases his claim to recover.

Defendant’s attorneys at once moved to strike out that testimony on the ground of variance. Plaintiff’s attorney thereupon asked and was given leave to amend imtanter. No amendment, however,' was filed, and at the conclusion of the plaintiff’s evidence, the defendant moved the court to instruct the jury to find the defendant not guilty. The court denied the motions and defendant’s counsel preserved exceptions.

The cause was submitted to the jury upon the declaration containing the material averments which the plaintiff’s evidence had failed to sustain. If an amendment had been filed the defendant might have wished to demur, to have pleaded the Statute of Limitation or other defense and it would have been entitled • to such privilege. After obtaining leave to amend “the plaintiff was in no wise obligated to exercise the privilege given and make the amendment, and until the amendment was in fact made the declaration remained the same as though no leave to amend it had been given.” Wisconsin Central Railroad Co. v. Weiczorek, 151 Ill. 579-583 et seq. Upon that declaration as it stood it was erroneous to deny the motions to direct a verdict for the defendant upon the plaintiff’s evidence which failed to support the declaration. It scarcely requires citation of authorities in support of the proposition that the allegations and proofs must correspond. The plaintiff having averred negligence in one particular cannot on the trial recover for alleged negligence in some other respect. The defendant is entitled to know what the ground is upon which the plaintiff seeks to hold him liable and it is the purpose of the declaration to advise him. Toledo, N. & W. R. R. Co. v. Foss, 88 Ill. 551; Gavin v. City of Chicago, 97 Ill. 66; Wabash W. Ry. Co. v. Friedman, 146 Ill. 583-588; Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523; Lake St. Elev. R. Co. v. Shaw, 203 Ill. 39-42; Wabash Ed. Co. v. Billings, 212 Ill. 37-40. In this last cited case it is said: “Every allegation which is descriptive of the cause of action must be proved as alleged in the pleading, and any variance therefrom is fatal unless it is waived by not calling it to the attention of the trial court, or is cured by an amendment of the pleading. Even if there are unnecessary allegations descriptive of what is material they must be proved.” In Chicago Union Traction Co. v. Hampe, 228 Ill. 346-348, the Billings case is cited and it is held that “in the absence of an amendment to the declaration, a verdict for defendant should have been directed,” there being in that case a variance between the averment of the declaration and the proof.

For the reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.